Discretion is fundamental to the judicial system and its exercise is an integral part of the role of the judge. An essential tool in the kit of every lawyer and judge, it enables application of what are often blunt instruments to the subtle nuances of the individual case.

The Lord Chancellor sings these lines in Act I of Iolanthe:

The Law is the true embodiment
of everything that’s excellent.
It has no kind of fault or flaw,
and I, my Lords, embody the Law.

William S. Gilbert’s words describe the experience of every trial lawyer. We leave the courtroom surprised and/or disappointed with judicial discretion. Negative rulings in that discretion are both common and—often—preventable.

“Judicial discretion” is defined as “the exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right,”1 especially in court trials and motion hearings. Each judge brings different values and life experiences to law and facts, often coming to a different conclusion than another judge might in a similar situation.2

American and English jurisprudence requires judicial discretion to function properly. It is impossible to write specific laws to address the infinite situations in which the thousands of laws apply and sometimes conflict. Judges hear the evidence first-hand and are best positioned to properly weigh its credibility, relevance, and prejudice. Judges need and have wide discretion to apply the law to the specific facts of a case, as well as to manage the process.

Minnesota is no exception to this rule. Judicial discretion is essential and is grounded both in the court’s inherent authority and in Minnesota’s statutes and rules, where thousands of references explicitly provide for its exercise. Prudent attorneys recognize the impact of judicial discretion and incorporate strategies to address it into their trial practice.

Sources of Discretion

Judicial discretion is called for in myriad, intertwined circumstances. Rules and statutes explicitly vest the judge with discretion in certain situations. After weighing the evidence presented, the judge must make findings on which to base legal conclusions. And the judge usually has discretion to devise remedies for the enforcement of these rules or statutes.

Statutes & Rules. Review of selected Minnesota statutes and rules has revealed 1,753 instances (listed in the accompanying sidebar) providing that a judge may or may not elect to do something.3 While some areas of law (particularly family, juvenile, and probate) allow for greater judicial discretion than others, all matters involve rules of either criminal or civil procedure that are replete with provisions for judicial discretion. But the fact that the judge has discretion to do something says nothing about what the judge must or will do; for example, one will search in vain for an appellate decision reversing a trial court’s denial of a motion to dismiss for lack of prosecution.

Fact-Finding Role. The court’s role as fact finder or case manager increases the scope of the court’s discretion exponentially. To prevail, the plaintiff or prosecution needs to establish certain facts. The judge, as fact finder in a motion hearing or trial to the court, or as case manager in a jury trial, has discretion in determining what evidence is allowed, how the judge or jury considers this evidence, and what remedies are available. Even where a party appeals the court’s decision and wins, the appellate court will often remand to the original district court judge for additional findings.4

Inherent Authority. Where discretion in statutes and rules ends, Minnesota courts have further expanded judicial discretion through precedent or inherent authority. A judge generally can enforce rules as he deems fit in the interests of justice. For instance, where the attorneys for defendants in a civil matter sought to withdraw as counsel and the client objected to the withdrawal, the court refused to allow the attorneys to withdraw because of significant risk of prejudice to the client and significantly more work for the court. No specific rule permits a court to prohibit the withdrawal of an attorney in a civil matter, but the court of appeals denied the attorneys’ writ petition, stating:

Minn. R. Gen. Pract. 105 is silent on the discretion of the court to consider objections to withdrawal that occur during the pendency of litigation. And the supreme court has not addressed this issue since the adoption of rule 105. But the district court is responsible for applying rules adopted by the supreme court in a manner that will “secure the just, speedy, and inexpensive determination of every action.”5

Limits to Discretion. Judicial discretion does have limits—generally imposed, firstly, by each judge’s own values and philosophy and, secondly, by appellate courts. In certain cases, luck is needed to be granted appellate review for an abuse of discretion. And you can’t know all of what goes into a court’s decision.

General Discretion

All areas of law offer some areas for judicial discretion depending on the issue tried. Aside from the applicable rules of procedure and general practice rules, most statutes involve discretion through findings of fact.

Fact Finding. Findings of fact during a bench trial or motion hearing provide substantial occasions for judicial discretion—or if not discretion, decisions subject to a less restrictive appellate review. Findings are inferred by the judge based on the judge’s interpretation of the record evidence. Furthermore, findings of fact “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”6

Evidence. Evidence allowed at trial is subject to the broadest effective judicial discretion. Discretion determines what evidence is permitted or disallowed. Rarely is a case overturned based upon evidentiary rulings. The Rules of Evidence are “not to be read narrowly but with a view for accomplishing essential fairness … . The rules provide for a great deal of flexibility and discretion.” For example, hearsay is permitted when, among other things, “the proponent of a statement has been unable to procure the declarant’s attendance by process or other reasonable means.”7 “[O]ther reasonable means” implies judicial discretion. Whether the judge is lenient or strict on the “other reasonable means” may depend on the prejudicial effect of the statement, the attempts made to obtain the declarant’s attendance, or other factors upon which the judge may rely.8 Appealing an evidentiary ruling is usually impracticable for reasons of cost, as well as improbable success.

Pretrial rulings. Most pretrial rulings, like evidentiary rulings, cannot be effectively appealed, yet have determining effect. Decisions on motions in limine, partial summary judgment, etc. often frame the case for the trier of fact—jury or court. Interlocutory appeals are discouraged. Because of this, for most practical purposes, especially in smaller cases, the trial judge is effectively the supreme court of the state.

Discretion as Applied

Family law perhaps provides the broadest venue for judicial discretion and is useful for illustrative purposes.9 In addition to the 500-plus occasions for discretion granted by the court rules in civil proceedings and the general rules of practice, the four main statutes governing dissolution and child custody issues provide an additional 493 instances where a judge may or may not elect to do something. The personal nature of the actions and the individual needs of the litigants and their children necessitate wide judicial discretion in family law.

Process. Avoiding parental alienation often requires extraordinary judicial intervention and provides a good example of judicial discretion as to process. Father married exwife’s former best friend after exwife told father that, if he ever married that woman, he’d never see their two children again. One week
after the remarriage, the teenage daughter complained of a relatively minor abuse by father. Access to the children ended for almost a year, despite an order for reconciliation counseling. The children’s separate therapists concluded that they could do nothing without court intervention. Father’s post-decree motion requested reinstatement of contact. The son who had not been abused said, in chambers with his therapist, that “if we see our father, there will be no peace.”

At a series of hearings, the mother’s several interferences with contact were serially addressed. Each gathering had excellent guardians ad litem, the children’s therapists, the attorneys, the parties, and other adults affecting the children’s access. At the end of each gathering, the children were brought into the court to explain what the next order was. The children were told that they had to follow the order to keep their parents out of trouble. Over three months, contact with both children was reestablished. By five months later, contact was regularized and frequent, and mother was ordered to pay some of father’s attorney fees for her obstructing role. The access issues never resurfaced. Discretionary decisions to listen to the children and the therapists, as well as the parties and attorneys—and to micromanage the parties with the excellent guardians for a short time—turned the tide. Recognizing a nonroutine matter, and telling the court of the irregularity, is critical.

Best interest factors. No divorcing couple or minor child is the same. Minn. Stat. §518.17 enumerates 13 “best interest factors” the court must look at when determining custody and support of a minor child. These factors are exactly that: factors. A court must look at the factors, but it is not required to weigh one more than another or prohibited from doing so. Great deference is given to the district court in weighing these factors.10

Orders for Protection. Likewise, notwithstanding the rigidities of some courts, an order for protection hearing under Minn. Stat. §518B provides the court with great discretion to tailor an order to the specific parties. First, the court must find abuse. As a finder of fact, the court may use its discretion to weigh evidence, make credibility determinations, and come down on one side or another. Once a finding of domestic abuse has been made, the court may provide any combination of the 15 options for relief including “other relief as it deems necessary … .”11

Keeping the Decider Happy Helpful Hints

Interrupting the judge under any circumstance is a bad idea.

Sloppy work is obvious to everyone, including the client, and an attorney will lose credibility with the judge by submitting sloppy work or arguments.

Do not get on the clerks’ bad side. Clerks have influence with the judge, even if it does not appear so. As with the judge, irritating the clerk needlessly does not do the client any favors.

Don’t tell the judge she can’t—unless she really can’t.

At least make an attempt to speak with opposing counsel before the hearing. Many of the issues can be resolved without involving the court.

Best Practices

Recognizing that the judge has broad discretion to make decisions that shape the outcome for you and your client, what are some options for limiting the uncertainty?12

Settle. The easiest way to avoid judicial whim is to prevent the judge from making any decision at all through settlement. In some situations, settlements need approval by the judge, e.g., dissolution proceedings and class actions; but a judge will more likely than not approve any reasonable agreement of represented parties. Bringing a case to trial is generally either the result of (1) an inexperienced attorney not knowing the value of a case or (2) a stubborn client. Second opinions can help avoid the first cause. In the latter situation, running through a cost analysis, including expert witness fees, estimated attorney fees, the vagaries of a particular judge, and the capriciousness of a jury can often assist an attorney in pushing the client to settlement.

Use ADR, and Remove Rarely. Use arbitration, consensual special masters (“CSMs”), and removal selectively.Sometimes the judge assigned is unknown (a master calendar system) or will be someone who is too new to be known well by the attorneys. Or the assigned judge may be too busy to hear the case within a time frame good for your clients’ emotions and pocketbooks. Or rarely the judge is someone whom you know will be hard on your client’s cause.

In such circumstances, particularly in family law, a binding arbitrator of financial issues will be preferable. Arbitrators and CSMs provide the attorneys with control over who is going to exercise the discretion. Arbitration reduces the possibility of appeal in areas where appeals are often unhelpful, extend the time of uncertainty, and add fees and costs. And both arbitrators and CSMs can design modes of trial that are sooner, speedier, on a reliable date certain, and no more costly than a bench trial.

There will be times when an attorney or client believes that using the free strike rule13 is the only wise choice—i.e., it is better to roll the dice and see who the next judge on the list might be. However, using alternative dispute resolution lessens the need for such strikes and removes that element of chance that the next judge might be less favorable to the issue than the first.

Be Reasonable. Barring settlement, the single most effective method for persuading a judge to use his or her discretion in your favor is reasonableness. Most attorneys can cooperate with the other side, making those who do not stand out. Emotional attorney investment in a case often results in posturing over small issues, damaging credibility on more important issues. And if the judge decides against a point, rarely does rehashing the argument do anything other than irritate the judge. Make an record really needed, and move on.

Prepare. Attorneys need to be well-prepared or they will end up embarrassed. Still, many do not know their case fully, especially if their exhibits come in huge binders. Attorneys must know their files inside and out. The judge will. (Even if it’s his clerks who tell him what’s in there). An attorney should have a two-page outline/summary of the facts easily accessible so judicial questions are answered promptly

Know the Rules. Know the rules of procedure and evidence and know them well enough to use them in realtime. Judges have vast discretion. If an attorney does not know these rules inside and out, he or she risks passing up an opportunity to affect the judge’s discretion.

Summarize. Put concise issues before the court. Doing so limits a judge’s focus to the issues presented.
Often attorneys will scatter shot—throw everything before the court because (1) the attorney is afraid to miss something, (2) the client wants to hear every argument, or (3) the attorney and/or client believe the sheer number of issues will persuade the judge to find in their favor. In addition to either confusing or creating more work for the judicial officer and irritating her, the scatter-shot approach to litigation enlarges the opportunity for the judge to use the court’s discretion.

With 1,148 instances in the court rules alone, a court will generally have wide discretion.14 Thus, attorneys who are reasonable, prepared, and courteous—and choose ADR techniques and providers well—will be far more successful.

Discretion for Everyone

Not only judges have discretion. Even more important is the discretion that clients and lawyers have. Settlement reduces the trial judges’ discretionary opportunities from hundreds to one—i.e., shall the agreement be approved? It is rare when an attorney-advised agreement is not adopted, at least in civil cases.

Equally important, the law and rules offer attorneys and clients many tools. Often, the best way to avoid negative judicial discretion is to not seek a judicial decision and to be most selective about what you and your clients ask a court to think about. In the words of a wise preacher, “be careful what you pray for; the answer may be yes.”15

Selected Provisions for Judicial Discretion

Court Rules

Rules of Civil Procedure

293

Rules of Evidence

57

Rules of Criminal Procedure

459

General Rules of Practice for the District Courts

241

Rules of Civil Appellate Procedure

98

Civil Statutes

Harassment statute

Minn. Stat. §§609.748–609.749

19

Mechanic’s Lien statute

Minn. Stat. §514

36

Eviction statute

Minn. Stat. §§504B.001–504B.471

49

Minnesota Human Rights Act

Minn. Stat. §§363A.001–363A.41

8

Family Law Statutes

Dissolution

Minn. Stat. §518

109

Child Support

Minn. Stat. §518A

153

Domestic Abuse

Minn. Stat. §518B

180

UCCJEA

Minn. Stat. §518D

51

Total: 1753

Retired Hennepin County District Judge Stephen C. Aldrich practices alternative dispute resolution with Gilbert Mediation, serving as arbitrator, private judge, special master, neutral evaluator, and mediator. He concentrates his practice in family law and civil cases other than personal injury. Judge Aldrich compiled 22 years’ experience practicing family law and ten years of service as judge in the Family Court Division.

Michael J. Cass is in private practice with Swenson Lervick Syverson Trosvig Jacobson Schultz, PA, in Alexandria, Minnesota. He concentrates his practice in areas of estate planning, probate, and guardian/conservator representation. A magna cum laude graduate of the University of St. Thomas Law School, he began his legal career as law clerk for Judge Aldrich.

3 These lists include areas of discretion, e.g., “the court may …” or “in the court’s discretion …” as well as instances of specific findings, e.g.,“if the court finds … determines, … etc.” and instances where the discretion may be a number of listed options, e.g., “the court may (a)…(b)…(c)… .” Allocating instances of discretion often includes some license. Special thanks to former law clerk Stuart Nostdahl for assisting the authors in researching this list.

4 In the 32 cases published by the Minnesota Court of Appeals from February through March 2010, 19 cases were affirmed outright, three were affirmed in part and remanded for additional findings, eight were reversed and remanded for additional findings, and only two were outright reversed.

8 For example, where the evaluator in a custody case had recommended physical custody to mother based upon erroneous facts and thin foundation, cross-examination of the evaluator was interrupted by a “leading” objection, surprisingly sustained. The judge noted the Rules of Evidence “ordinarily” permit cross-examination by leading questions. Father was granted custody. We infer that the judge was protecting the hapless evaluator from embarrassment, in part, because he was likely to grant father custody despite the report.

9See side bar. Together the family law statutes and the applicable rules specify 1,016 (or so) occasions for a judge to do something … or not. Juvenile and probate courts have similarly broad discretion—particularly as regards best interest factors.

12 These best practices are derived from the “Top Ten Advises for Attorneys from Externs and Law Clerks,” compiled by Stuart Nostdahl, Michael Cass, Sarah Ruter, and Nick Fasching, former clerks and interns to Judge Aldrich.

National Conference of State Trial Judges of the Judicial Administration Division of the American Bar Association and the National Judicial College, The Judge’s Book, 2d Edition. Reno: ABA and National Judicial College, 1994. See,esp. “Judicial Discretion” at pages 269–275 and “Courtroom Control” at pages 277–296.

3 Comments

I’m interested in your article but would like the citations that are used.

Thanks,
Eric Stoeger

Bench & Bar

Apr 11, 2016

Eric,

If you click the link NOTES at the end of the article, the notes/citations will expand for you to view.

Paul Grant

Jan 27, 2019

Judicial discretion, according to John Marshall in a private letter, is the exercise of judicial judgment guided by the law. [citation missing]. The significance of that definition is the implication that, if there is no law to offer guidance, then a judge’s decision is purely arbitrary, a decision based on whim. But as the author notes here, laws cannot be written which will provide guidance in every situation. Arbitrary law was one of the chief complaints of the Founders against English law.
The “rule of law” sounds noble and is offered as a way to avoid arbitrary law but that concept is a fantasy because laws are always interpreted and applied by men and women. Thus, in practice, the law becomes what the judge says it is. Judicial discretion is an unavoidable defect of the law. For that reason, respect for the law should be tempered by the recognition that the law as applied is often unjust and unreasonable and it is always the product of the personal values and predilections – that is, the whims – of judges.